Report No. 69
100.1. Various aspects of the law of evidence.-
By way of concluding our discussion of the Act, we would like to say a few words in this Chapter as to certain matters of general interest. The query may be raised why an Act like the Evidence Act should require discussion at length. The law of evidence is often regarded as relating to matters purely of interest to lawyers, and in that sense, it is described as a technical branch of the law. It is true that the subject of evidence belongs to what is usually described as adjective law as distinguished from substantive law. To put the matter in a different form, it deals with the means permitted by the law for the ascertainment of truth by the judicial process, and not with the end of the law as an instrument of social justice. Nevertheless, the means would appear to be as important as the end. If the means be defective, the end cannot be fully achieved.
100.2. There are, in our opinion, certain other aspects also, which ought to be appropriately emphasised. In a decision of the House of Lords1 reported in 1918, Lord Parker, while dealing with the status of foreign law, observed-
"Every legal decision of our courts consists of the application of our own law to the facts of the case as ascertained by appropriate evidence."
When Lord Parker was speaking of "law", he was not, of course, ruling out the law of evidence; what is more pertinent to be pointed out is that he laid emphasis on "appropriate evidence" and it is the function of the law of evidence to lay down whether a particular evidence should be regarded as appropriate or not.
1. Dynamit Action-Gesellschaft v. Rio Tinto Co., 1918 AC 292 (302) (HL).
100.3. An eminent English counsel and Editor of the All England Law Reports1 has defined the judge's task as, first to ascertain the facts, second, to ascertain the rule applicable thereto, and third, to apply that rule to those facts.
1. R. Burrows Law Reporting, (1942) 58 LQR 96.
100.4. Human values.-
Apart from this legal aspect, we may also point out that several branches of the law of evidence deal with questions affecting human values. Rules relating to confessions are an example. The human element becomes relevant in a formulation of the rules of the law of evidence in relation to another topic of the law, namely, questions of privilege. Much of the law of evidentiary privilege is concerned with matters which are protected from disclosure having regard to eminently human considerations-considerations which involve a person's conjugal rights, his dignity, his reputation for moral integrity, his dealings with those in whom he has placed confidence, and the like.
100.5. Foster's view as to character.-
In discussion cases relating to character, Foster makes a statement which has subsequently been frequently quoted1-
"The rule of rejecting all manner of evidence in criminal prosecutions that is foreign to the point of issue, is founded on sound sense and common justice. For, no man is bound at the peril of life or liberty, fortune or reputation, to answer at once and unprepared for every action of nil life. And had not those concerned in state prosecutions, out of their zeal for the public service, sometimes stepped over this rule in the case of treasons, it would perhaps have been needless to have made an express provision against it in that case, since the common-law grounded on the principles of natural justice hath made the like provision in every other."
1. Foster Crown Law, 246.
It may also be mentioned that the level of culture of a civilization may impose restrictions on the content of the law of evidence. For example, in criminal trials, involuntary confessions are excluded, not only because they may be false, but also because they are repulsive to the conscience of society. Then, there is the intellectual appeal of the law of evidence, in so far as it touches on the field of logic and seeks to define what facts are to be considered as of probative value in the eye of the law- "relevant" as the expression goes. Thus, the legal, moral and social importance of the law of evidence is much deeper than may appear at the first blush. That explains why the subject cannot be fully disposed of in a brief report.
Codification of the rules of evidence may not have a long history; but even so, it may be pertinent to point out that some of the rules of evidence are of great antiquity,1 as was noticed by Kenyon C.J. This fact was emphasised by Best,2 with reference to what he regarded as the primary and secondary principles of evidence. A primary principle, according to Best, is one related to a fact to be proved, while a secondary principle is one related to the means of proof.
One of these primary principles is that evidence must be relevant. This principle underlies some of the rules designed to exclude misleading facts from the consideration of the tribunal; and at least one of these rules, that the action of strangers to a litigation ought not to prejudice a party (res inter alios acts alteri nocere non debt) is to be found in a slightly different form in Justinian's Code.3 According to another principle, the burden of proof lies on the party alleging a fact, of which the correlative rule is that he who alleges a matter must prove it, but he who denies it need not disprove it cei incumbit probatic qui dicit non qui negat). This maxim was attributed to Paulus4 while, as early as the second century A.D., a comparable adage was attributed to the rabbinical teacher Akiba.5
1. R. v. Inhabitants of Eriswell, (1790) 3 TR 707; Bauermann v. Radenius, (1798) 7 TR 663 (667).
2. Best, 94, 95, referred to by Nokes Introduction to Evidence, (1967), p. 16.
3. Corpus Juris Civilis, Code viii, 60, cited by Notes Introduction to Evidence, (1967), p. 16.
4. Corpus Juris Civilis, Dig. xii, 3, 2.
5. The Nishnah Belch, 2 (7) see also B.K. 3(11) DB 9 (6) (1933) trs. Danby, 532 (336, 379).
100.8. In India, Brihaspati remarked ages ago that "since people begin to entertain doubts (about a transaction) even in six months (from an occurrence on transaction), the Creator therefore created in the hoary past letters which are recorded on writing material" .1
1. Brihaspati, quoted by Kane History of Hindu Dharmashastra, Vol. 4, p. 308.
100.9. Process of the law.-
When success depended on such means as a judgment from God, the oath of the parties, wager of law (compurgation) or of battle and ordeals (ardalist), rules of evidence were not needed. Society has, however, long since passed these stages. Essentially, rules of evidence regulate the process of fact-finding in a court of law. This process, whether it is or is not regulated by mandatory rules, is different from the process of such finding in other finds of human activity. The difference has been lucidly brought out by two American authors,1 one of whom is the Editor of Wigmore:
"The most conspicuous difference between the law's problems in determining historical facts and those of other disciplines lies in the procedure of decision. Other disciplines rely primarily on the method of inquiry, reflection, and report by trained investigators. In other disciplines the final conclusions as to key facts are drawn by experts, and the conclusions may be changed-if they are found later after further inquiry and reflection-to be wrong. The law, in contrast, depends in most formal proceedings upon presentation by the disputants in public hearing before an impartial tribunal, a tribunal previously uniformed about the matters in dispute. And findings of facts by the tribunal are usually final so far as the law is concerned.
Typical or such formal proceedings is the trial in court. A trial suffers from immobility. It suffers from shortage and inflexibility of time it is dependent largely upon non-expert sources of information and upon non-expert evaluators of information (the jury). In addition, proof at a trial is rather strictly governed by procedural rules called rules of evidence."
1. Hart and McNaughten Evidence and Inference in the Law, 1938, p. 51 (56); Loisell, Evidence, Cases and Materials, 1972, p. 3 (4).
100.10. The same authors have emphasised the element of contest in these words:
"A contested law suit is the society's last line of defence in the indispensable effort to secure the peaceful settlement of social conflicts. In the overwhelming majority of instances, the general directions of the law function smoothly with no controversy whatever. When controversies do arise, the overwhelming majority of them are settled informally or, if formally, without a contest, as by plea of guilty in a criminal case. In almost all these situations lawyers are likely to handle evidence in the same commonsense fashion that anybody else would, unless special calculations are called for by a real possibility of formal litigation.1
When a question has reached the point of contested trial, however, its whole context is changed. Victory, and not accommodation, is the objective of the parties. The adversary atmosphere and the delays of litigations naturally repel evidence, especially testimony and things under the control of disinterested persons, so that the litigants have available for use only the partisan and coerced residue after people with ingenuity have made themselves anonymous. That residue is culled by the parties with a view not to establishing the whole truth, as to winning the case. And the evidence which survives this attrition (and the exclusionary rules of evidence described below) is communicated to the trier of fact in an emotion-charged setting.
In judging the law's handling of its task of fact-finding in this setting, it is necessary always to bear in mind that this is a last-ditch process in which something more is at stake than the truth only of the specific matter in contest. There is at stake also that confidence of the public generally in the impartiality and fairness of public settlement of disputes which is essential if the ditch is to be held and the settlements accepted peaceably."
1. Hart and McNaughten Evidence and Inference in the Law, 1938 p. 51 (56); reproduced in Louisell and others Evidence Material and Proof, 1972, p. 2 (3).